A Salvadoran immigrant living in the U.S. illegally has been awarded $12,000 by Virginia to settle a federal lawsuit he filed against Henrico County’s sheriff after he was held for immigration authorities beyond his scheduled release from jail.
In a case that has significant implications for Virginia sheriffs and other officials who operate jails across the state, Virginia’s Division of Risk Management on June 30 authorized the payment to Jaime S. Alfaro-Garcia, whose immigration case has lingered since he was arrested in 2013 and charged with drunken driving.
The state also authorized an additional payment of $10,928 to cover the legal expenses incurred by Henrico Sheriff Michael Wade in his defense against the lawsuit, which was settled in May.
Although both parties have said the terms of the settlement are sealed, Don LeMond, director of the state’s risk management office, confirmed that payments totaling $22,928 were authorized to settle the suit, based on a written order from federal court.
“We get a copy of the court order that directs this to be done,” LeMond explained.
A court filing that ended the case says only that both sides reached a mutually agreeable settlement and that each side will pay its own costs and attorneys fees.
The case was closely watched by law enforcement officials in Virginia. Many of them feel they are caught between cooperating with immigration authorities seeking to deport immigrants charged with or convicted of criminal offenses, and immigrant-rights advocates who are challenging the constitutionality of keeping immigrant prisoners detained after they otherwise would be released.
John W. Jones, executive director of the Virginia Sheriffs’ Association, said most sheriffs are now declining to hold U.S. Immigration and Customs Enforcement detainees without a warrant signed by a federal judge or magistrate.
Immigration attorney Jacob Tingen, who represented Alfaro-Garcia, has asserted that ICE detainers requesting that jail officials hold immigrants for an additional 48 hours after their scheduled release are unconstitutional.
“Just because you’re not here with lawful status doesn’t mean you surrender constitutional rights or due process,” he said.
With settlement of the Alfaro-Garcia case, Tingen said, Virginia localities are “now on notice,” and immigration lawyers like himself are prepared to bring similar cases in the future.
But Andrew R. Arthur, who formerly served as both an attorney for the former U.S. Immigration and Naturalization Service and as an immigration judge, said ICE detainers are in fact constitutional under the authority of the Immigration and Nationality Act.
“I would say it is generally part of Congress’ authority to regulate naturalization,” he said, “and the immigration authority that flows from that.”
Arthur said that up until relatively recently, there was never any question about whether ICE detainers were legal, and localities complied with them “for the very simple reason that they don’t want to have criminals in their communities and that if somebody committed a crime, that individual was removable from the United States.”
“But frankly, during the Obama administration, I really don’t think the Justice Department litigated some of these cases as vigorously as they could have,” said Arthur, who now serves as resident fellow in law and policy at the Washington-based Center for Immigration Studies. “And as a result, there is some bad law.”
Arthur said the courts have ruled both ways on the issue, but that he does not “believe that (ICE detainers) are constitutionally infirm, because they are for a very limited amount of time — 48 hours.”
A provision in an immigration bill recently passed by the Republican-controlled U.S. House of Representatives would clarify the authority of ICE detainers and grant localities immunity from lawsuits if they comply with the detainer requests, Arthur said.
“It says that acting in compliance with the detainer shall be considered acting under color of federal authorities for purposes of determining liability, and they shall be held harmless for compliance,” Arthur said. “And the U.S. government would step into the shoes of Henrico County. Now of course that wouldn’t apply to bad faith — any sort of civil rights violation or deliberate mistreatment of an individual.”
As it stands now, the detainer issue has created friction between some local and regional jailers in Virginia and the U.S. Department of Homeland Security, which at times has publicly censured specific localities as being “uncooperative” because they declined to hold immigrant inmates beyond their scheduled release.
In Virginia, Chesterfield County is one of two localities in the state labeled by Homeland Security as “restricting” its cooperation with ICE. The other is Arlington County.
For Chesterfield, the designation is related to Sheriff Karl Leonard’s decision nearly three years ago — based on advice from the county attorney — to no longer hold immigrant inmates for 48 hours beyond their scheduled releases.
Leonard said he’s happy to cooperate as long as ICE picks up a detainer-designated inmate before the scheduled release, and the sheriff said he will hold an inmate longer if ICE provides an arrest warrant or order of detention signed by a federal judge or magistrate. The jail now holds immigrant inmates for only two hours after their scheduled release, which Leonard said is roughly the time it takes to process them out of the facility.
Chesterfield Jail officials notify ICE well in advance of an immigrant inmate’s scheduled release.
In the Henrico case, Alfaro-Garcia filed suit against the sheriff and jail in June 2015, two years after he was arrested on June 10, 2013, on a charge of drunken driving and driving without a license. He was sentenced to serve one month in jail and, after completing his sentence on July 17, 2013, was held for an additional 48 hours pursuant to an ICE detainer.
But after the 48-hour period expired, Alfaro-Garcia was held for an additional 12 to 14 hours, according to his suit, and he was ultimately released around July 20, 2013. The lawsuit claims that Henrico’s former policy of holding immigrant inmates for just the additional 48 hours requested by ICE is in violation of their constitutional rights.
ICE spokeswoman Carissa Cutrell said the agency lodged a detainer on Alfaro-Garcia with the Henrico Jail on June 10, 2013, but later lifted the detainer when an officer was not able to take custody of him within the specified 48 hours after his scheduled release.
She said immigration officers then arrested Alfaro-Garcia on Aug. 13, 2013, on immigration violations and took him into custody. On Sept. 26 of that year, an immigration judge granted him bond, and he was released the next day.
“His immigration case is ongoing,” Cutrell said.